Senator introduces electronic surveillance reform bill

A new bill introduced in the U.S. Senate would update a 25-year-old law that sets the rules for law enforcement surveillance of e-mail and other electronic communications, with more legal protections for the privacy of data stored in the cloud.

Currently, the ECPA allows law enforcement agencies to gain access to unopened e-mails and files stored in the cloud for longer than 180 days through a subpoena, typically issued by a prosecutor, not a judge. The 180-day rule is "outdated," said Senator Patrick Leahy, a Vermont Democrat and sponsor of the new bill.

The 1986 law has been "out-paced by rapid changes in technology and the changing mission of our law enforcement agencies" since the Sept. 11, 2001, terrorist attacks on the U.S., Leahy, chairman of the Senate Judiciary Committee, said in a statement. "Under the current law, a single email could be subject to as many a four different levels of privacy protections, depending upon where it is stored and when it was sent."

The bill would also require that law enforcement agencies get court-approved warrants to access the geolocation information of a mobile phone subscriber. Under current U.S. law, it's unclear if mobile phone location information is protected by the warrant process.

The bill requires that law enforcement agencies notify suspects within three days that government agents have accessed their data, although it would allow law enforcement agencies to seek court orders delaying the notification for 90 days in sensitive situations. The legislation allows ISPs and other vendors to voluntarily disclose information that is pertinent to addressing a cyberattack to the government.

"I drafted this bill with one key principle in mind -- that updates to the Electronic Communication Privacy Act must carefully balance the interests and needs of consumers, law enforcement, and our nation's thriving technology sector," Leahy said.

A group called the Digital Due Process Coalition, made up of tech vendors and privacy groups, has been pushing for changes to the ECPA since early 2010. The different levels of protection for e-mail and other stored data don't make sense with the growing dependence on cloud computing, the group has argued.

ECPA deals with third-party control of data "imperfectly," with different rules if e-mail is on a suspect's computer, if it's been opened, if it's in transit and if it's stored for 180 days, said James Dempsey, vice president for public policy at the Center for Democracy and Technology.

"You have this mishmash of rules, and yet, it's the same content, and we all treat it as if it were the same," he said at a Tuesday debate on ECPA reform at the Brookings Institute. "Increasingly, it sits in a place where ECPA says it's unprotected."

Federal law enforcement agencies have questioned the need for an ECPA overhaul. There's a long legal history of information given to a third party not being protected with a search warrant standard, said Valerie Caproni, general counsel of the U.S. Federal Bureau of Investigation.

Changes in ECPA would make it more difficult for the FBI and other law enforcement agencies to protect the U.S. public and maintain national security, she said at the Brookings event.

"We need to move carefully in this area," added James Baker, associate deputy attorney general in the U.S. Department of Justice.

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is grant_gross@idg.com.

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